Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Panama (Ratification: 1966)

The Committee notes the comments of 23 July 2009 by the National Federation of Public Employees and Public Service Enterprise Workers (FENASEP) referring to matters examined by the Committee, and the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to acts of anti-union discrimination and interference, and indicating that labour disputes in export processing zones are subject to compulsory arbitration (on this point, the Government informed the Conference Committee on the Application of Standards that a Bill has been submitted to resolve the matter). The Committee requests the Government to send comments in response.

The Committee also notes the comments of 29 May 2009 by the National Council of Private Enterprise of Panama (CONEP). The Committee asks the Government to send its observations in response.

Articles 1, 4 and 6 of the Convention. In its previous comments, the Committee noted that Act No. 24 of 2 July 2007 to amend the Administrative Careers Act contains provisions to protect public servants against acts of anti-union discrimination, and establishes the right of associations of public servants to collective bargaining. In view of FENASEP’s assertion that the right to collective bargaining has been regulated, the Committee requests the Government to indicate whether municipal workers and workers in decentralized institutions enjoy the right to collective bargaining.

The Committee recalls that for many years it has been commenting on the following provisions:

Article 4

(a)   section 12 of Act No. 8 of 1981 provides that no enterprises (other than building enterprises) shall be required to conclude a collective labour agreement in the first two years of operations, which could in practice imply denial of the right to collective bargaining;

(b)   the need to amend the legislation so that in the event of a strike attributable to the employer, the payment of wages for strike days is not imposed by law (section 514 of the Labour Code) but is a matter for collective bargaining between the parties involved; in this context, CONEP points out that the legislation does not require any proof, prior to the strike, that a collective agreement was breached or legal provisions repeatedly violated;

(c)   the requirement that the number of representatives of the parties in negotiations shall be from two to five (section 427 of the Labour Code).

Bargaining with non-unionized groups. In its previous comments the Committee referred to collective bargaining in the private sector with groups of non-unionized workers (section 431 of the Labour Code), and asked the Government to look into the matter with a view to ensuring that there is no collective bargaining with groups of workers where there is a trade union in the bargaining unit. The Committee notes with satisfaction that in its report the Government states that on 20 May 2009 Executive Decree No. 18 was adopted to regulate sections 398, 400, 401, 403 and 431 of the Labour Code. This Decree establishes that the right to negotiate and sign a collective labour agreement belongs to properly established social organizations and that, consequently, the Ministry of Labour will not entertain claims submitted by a non-organized group of workers (section 1). Furthermore, the employer may not negotiate with a non-organized group of workers the conclusion of a collective labour agreement or the claims for a collective labour agreement where there is a properly constituted trade union in the enterprise (section 2). Non-organized groups may apply for the registration of claims or a collective agreement, but the Ministry of Labour must first ascertain that there is no trade union in the enterprise and that there is no breach of trade union rights. Furthermore, such claims shall not preclude later submission of claims by an organization of workers, and the employer may not refuse to bargain.

Restrictions on collective bargaining in the maritime sector. In its earlier comments, the Committee took note of restrictions on collective bargaining in the maritime sector under section 75 of Legislative Decree No. 8 of 1998, establishing the conclusion of collective agreements as an option, which in practice leads to the denial of workers’ claims by employers and about which an application had been filed for this legislation to be found unconstitutional. The Committee also noted the Government’s statement that a draft of a new Shipping Code was to be submitted to the Legislative Assembly. The Committee requests the Government to report on this matter.

Lastly, the Committee notes that CONEP seeks the regulation of legal disputes and asks the possibility for employers to submit claims and initiate conciliation proceedings. The Committee invites the Government to address these matters through tripartite dialogue.

Noting that the discrepancies between legislation and practice and the Convention have existed for many years, and bearing in mind the seriousness of some of the restrictions mentioned, the Committee again urges the Government to take the necessary steps, in consultation with the social partners, to amend the legislation to bring it into full conformity with the provisions of the Convention and the principles of freedom of association. In view of the Government’s statement that although there is no agreement with the social partners for amendment of the Labour Code, it is ready to harmonize law and practice with the Convention and is formulating a Bill for this purpose, the Committee urges the Government to seek ILO technical assistance in this process and to provide information in its next report on all progress made.